Article III and Judicial Supremacy II: Is Judicial Supremacy Desirable?
In my previous post, I discussed the question of judicial review versus judicial supremacy. The reason I bring this up is to address the arguments that John Roberts made as a lawyer for the Reagan Administration, defending the constitutionality of a proposal to strip the court of its jurisdiction to hear desegregation cases. It is, first of all, important to distinguish between policy and constitutional questions here. Obviously, I think that this proposal is awful public policy, I trust most of you do too, and if you don’t I’m not going to be able to convince you. Having disposed of the easy question, let’s move on to the more interesting question: is limiting or stripping jurisdiction from the courts constitutional?
The basis for the constitutionality of jurisdiction-stripping is actually quite strong. Article III, after giving Congress the discretion to set up appellate courts, says that “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” This language is quite unequivocal, and Congress has used these powers before. Lest you think this is a “conservative issue,” the most recent use was in the Norris-LaGuardia Act, probably the most strongly pro-labor legislation ever passed by Congress. The fact that Congress has great discretion over the lower federal courts creates a real puzzle for both opponents of jurisdiction-stripping and supporters of judicial supremacy–given that Congress doesn’t have to create courts at all, it seems implausible that it could be unconstitutional to merely remove or limit a court’s jurisdiction.
There is, however, a serious argument that jurisdiction-stripping is unconstitutional, which brings us back to our previous discussion. The argument is that jurisdiction-stripping creates a right without a remedy: rights declared by the court must inherently be judicially enforceable. I think, at least insofar as constitutional rights are concerned, this argument is probably right–if you accept the premise of judicial supremacy. (This also has the bonus of preserving Norris-LaGaurdia, which involved equity powers established by Congress.) If you don’t, however, then I think Congress clearly has this power. Under the logic of Marbury, the courts cannot apply unconstitutional legislation, but courts have no inherent right to pass judgment on the legislation beyond that. So the argument boils down to whether you accept judicial supremacy in constitutional interpretation.
I don’t have any big punchline here; as I said before, I don’t have a strong view, for a few reasons. (Good starting points for a stronger argument would be Larry Kramer’s Popular Constitutionalism and Judicial Review or Mark Tushnet’s Taking the Constitution Away From the Courts.) First, as iocaste says in the comments to the previous thread, there is a difficult conceptual problem that arises if there’s no way of resolving constitutional conflicts (although the puzzle remains if the courts remain unchecked too.) Second, I think it’s unlikely that judicial supremacy is going away, and certainly judicial review won’t, so the argument on some level is a parlor game. Third, while I don’t agree with everything in Tushnet’s book I think there’s some truth to his claim that judicial nullification of legislative acts in the long run is “noise around zero,” generating essentially random differences from other political institutions, some better, some worse. (More specifically, from my perspective I think judicial supremacy can be expected to be better for civil liberties and worse for economic policy and federal power. If you’re a left-communitarian, judicial review is pretty much lose-lose for you.) My main concern, however, is that progressives not evaluate the merits of limiting the court’s power through the lens of any individual case. Hence, a few points for progressives to keep in mind:
Democracy is not at stake in discussions about judicial review. Earl Warren is dead. The Court is not a reliable defender of powerless minorities.
(Cross-posted at Majikthise).
What I want to stress, then, is that in thinking about the Court and potential constraints on the Court’s power is that progressives should not conflate the effects of judicial supremacy with judicial decisions you like. Supporting judicial supremacy does make it easier to protect Roe v. Wade. But is also means that you have to reject Lincoln’s argument that while Dred Scott was binding on the litigants, it should not be accepted as right when Congress was voting on legislation. Now, it could be that my implication that the Court, in the long run of American history has been more conservative than the other political branches is wrong, although I’m pretty skeptical. More plausibly, it could be argued that given established doctrines the Court is likely to be more progressive in the future than in the past; obviously, nobody knows. I’m certainly open to the claim that judicial supremacy is a good thing, or that my general support for legislative overrides is misguided, of that my claim that there is a strong constitutional basis for Article III jurisdiction-stripping is incorrect.. But I do think that proponents of judicial supremacy need to stop making inflated claims about what judicial power can accomplish and to asses the totality of the Court’s history.